Dear PAO,

My brother and Mark quarreled. The two exchanged punches until my brother fell to the ground. Mark seized the opportunity. He retrieved a bolo from his motorcycle and hacked my brother three times, even if the latter was no longer fighting back. Fortunately, my brother survived. Some of my relatives are encouraging us to proceed with the filing of an appropriate criminal case against Mark. According to them, the offense committed by Mark could be aggravated by use of superior strength but one thinks otherwise because there is no numerical superiority as Mark was a lone assailant. May I know if there is abuse of superior strength even if there is only one assailant?

Ascorro

Dear Ascorro,

One circumstance which could aggravate the criminal liability of the offender is abuse of superior strength which is found under Article 14(15) of the Revised Penal of the Philippines, as amended, which provides that:

“Artcile. 14. Aggravating Circumstances. – The following do not incur any criminal liability: xxx

“(15) That advantage be taken of superior strength, or means be employed to weaken the defense;”

Such circumstance was fully explained in the Supreme Court decision penned by Associate Justice Bienvenido Reyes and entitled People of the Philippines vs. Villanueva and Sayson, GR 226475 March 13, 2017, where the Supreme Court said that:

“Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor selected or taken advantage of by him in the commission of the crime. The fact that there were two persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength, there being no proof of the relative strength of the aggressors and the victim. The evidence must establish that the assailants purposely sought the advantage, or that they had the deliberate intent to use this advantage. To take advantage of superior strength means to purposely use excessive force out of proportion to the means of defense available to the person attacked. The appreciation of this aggravating circumstance depends on the age, size and strength of the parties.”

Clearly, abuse of superior strength pertains to the notorious inequality of forces between the victim and accused, and is not limited to superiority in the number of the assailants. What is material is that the accused must have purposely used excessive force which is out of proportion to the defenses available to the victim. It follows then, that abuse of superior strength can be appreciated even if there is only one assailant, especially when the latter used a weapon which is not proportionate to the means of defense of the victim. This is backed by the decision of the Supreme Court in People of the Philippines vs. Hermo, GR 135026, Feb. 15, 2002, penned by Associate Justice Jose Vitug Jr., stating that:

“Abuse of superior strength is present not only when the offenders enjoy numerical superiority, or there is a notorious inequality of forces between the victim and the aggressor, but also when the offender uses a weapon which is out of proportion to the defense available to the offended party.”

Applying the above-quoted decision to your situation, the application of aggravating circumstances of abuse of superior strength is not limited only to superiority in numbers. Even the presence of superiority in numbers per se would not automatically result in the appreciation of abuse of superior strength because there must be evidence, which could prove that the accused must have purposely taken this advantage to facilitate the crime.

Mark used a bolo to hack your brother even if the latter is no longer fighting back. The use of bolo is clearly out of proportion to the defense available to your unarmed brother; hence, abuse of superior strength may be appreciated as aggravating circumstance to the appropriate criminal offense to be filed against Mark.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].